FACTORS WHICH DETERMINE PUNISHMENT IN CRIMINOLOGY

 LET'S START WITH AN EXAMPLE A person reading a newspaper and reads a news that "A, a person, committed murder of B." The pers...

 LET'S START WITH AN EXAMPLE

A person reading a newspaper and reads a news that "A, a person, committed murder of B." The person will surely assume that he will be punished with death penalty or by life imprisonment. It does not matter whether the person reading is of legal or non-legal background, because SECTION 302 is the most common section which everybody hears in their day to day life, generally on the first page of the newspaper only.

But, is it that simple to say that what punishment will be given to an accused. Do we need to just turn the pages of bare act of INIDIAN PENAL CODE,1860 (hereinafter referred as IPC) and see the punishment in the section?

The answer is NO. In IPC, punishments are categorically mentioned for each and every offence, but then too it varies from person to person that what quantum of punishment he will be convicted with.

WHAT ARE THOSE FACTORS?

In criminology, not only a particular section which provides punishment of an offence deternines that what may be the punishment awarded to the convicted. Besides the section there are following factors which determines the quantum of punishment.

They are: 

1. PREGNANCY

If a woman commits offence of murder,or any other offence in which death punishment is provided, then, till the trial ends there are two alternatives for which she may be punished, they are, Capital punishment or Life Imprisonment.

But, if she is convicted with death sentence and found to be pregnant, in such scenario her punishment will be commuted to Life imprisonment, as per the provision of SECTION 416 of CODE OF CRIMINAL PROCEDURE,1973 (hereinafter referred as CRPC).

SECTION 416 CRPC states that: "If a woman is sentenced to death is found to be pregnant, the High Court SHALL commute the sentence to imprisonment for life."

2. AGE FACTOR

This factor is to be divided into two parts :- 

  

1) Age of the person when he committed the offence - 

A) If under 16 years of age : If a person under 16 years of age commits any offence, he will not be tried in any scenario, according to the procedures given in CRPC. Such person will be tried as per the provision of JUVENILE JUSTICE ACT,2015(hereinafter JJ ACT) according to Section 21 of which, "No person tried under this act shall be sentenced to death or Life imprisonment". That means whehter a murder is committed by such person, he will not be punished with death or Life imprisonment and so SECTION 302 IPC will not apply to him. He will only be punished as per SECTION 18(1) of the JJ ACT (click on "section 18(1)" to read it), according to which he may be asked to do any of the following : 

• Direct the child to participate in group counselling and similar activities
• Order the child to perform community service
• Order the child or parents or guardian to pay fine

and many more such orders.

B) If above 16 years but under 18 years : Initially such persons will also be inquired as per provisions of JJ ACT,2015 , but if such person is found to be committed a heinous offence (punishable with 7 years or above), in such case there is a discretion given to the Children's Court according to the act, and by using such discretion it may order that such person is to be tried as an adult. But, though he is being tried as an adult(that is, above 18 years of age) as per the provisions of CRPC , then too, he shall not be punished with life imprisonment or death sentence ( Section 21 of JJ ACT click to read) but may be punished with any other punishment of IPC.

And if such person has committed an offence which is punishable less than 7 years of punishment, then he will be tried as per JJ ACT only, and will not tried as an adult but tried as a child only.

NOTE: The above provisions are also applied to a child under 7 years of age, for whom nothing is an offence ( SECTION 82 IPC).

2) Age of the person when he is held guilty of an offence : 

• According to Section 360(1) of CRPC,1973 : " When any person not under 21 years of age is convicted of an offence punishable with fine only or with imprisonment for a term of seven years or less, or when any person under 21 years of age or any woman is convicted of an offence not punishable with death or imprisonment for life, and no previous conviction is proved against the offender, if it appears to the court before which he is convicted, regard being had to AGE, Character, or Antecedents of the offender, the court may direct that he be released on his entering into a bond, with or without sureties, to appear and receive sentence when called upon during such period ( not exceeding 3 years) as the court may direct".

So, it is cleared from the above section that the factors like, whether he is a first time offender , what is his age, regarding his character, his antecedents, all such factors determines whether he should be punished or to be released on probation.( in simple language, probation is a testing period to see whether such person if released will behave properly in society or not).

• According to Section 3 of Probation of Offeders Act, 1958 : "When any person is found guilty of having committed an offence punishable under section 379 or section 380 or section 381 or section 404 or section 420 of the Indian Penal Code, (45 of 1860) or any offence punishable with imprisonment for not more than two years, or with fine, or with both, under the Indian Penal Code, or any other law, and no previous conviction is proved against him and the court by which the person is found guilty is of opinion that, having regard to the circumstances of the case including the nature of the offence, and the character of the offender, it is expedient so to do, then, notwithstanding anything contained in any other law for the time being in force, the court may, instead of sentencing him to any punishment or releasing him on probation of good conduct under section 4 release him after due admonition".

 according to the above section, if the offender is convicted for the above mentioned categories of offences, then, he may not be punished with imprisonment, rather, be released by court after admoniting him to not to commit such act in future.

3. POWER OF APPROPRIATE GOVERNMENT

According to Section 432 of CRPC : "When any person has been sentenced to punishment for an offence, the appropriate government(defined U/S 55A of IPC) may, at any time, without conditions or upon any conditions which the person sentenced accepts suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced".

This shows that, though a person is punished for a quantum of punishment, it is not necessary that he will be released after serving whole of the punishment awarded to him. Based on his good character and behavior and other factors to be determined by the appropriate government, he may be released before completion of the sentence.

NOTE: When a life imprisonment is awarded to an offender, it is for his whole remaining life and not only for 14 years. It is by using power of Section 432 CRPC(click to read the section) the appropriate government may release a person, who is awarded life imprisonment, within 14 years. ( READ Section 433 CRPC).

4. JUDICIAL EVOLVEMENTS

Through the following landmark decisions, the Supreme Court of India made it clear that what are the factors are to be determined by a judge to award a  punishment, when there are 2 alternatives available.

For instance: In Section 302 IPC, Life imprisonment or  Death are available as options which can be awarded by a judge. But, which one to award to whom is to be decided on the basis of following factors:

BACHHAN SINGH vs. STATE OF PUNJAB   (click to read whole case)

It was held that, "Death sentence is to be imposed only in the gravest cases of extreme culpability, or in the "rarest of the rare" cases when the alternative option is unquestionably foreclosed".

MACHHI SINGH vs. STATE OF PUNJAB  (click to read whole case)

It was held that:  1) Life imprisonment is a rule and death sentence is an exception

2) It has to be determined that, whether there is something uncommon about the crime which renders a life imprisonment inadequate and calls for death sentence.

3) Circumstances of crime are such that there is no alternative but to impose the death sentence even aftr according maximum weightage to the mitigating circumstances which speak in favour of the offender.

Above two case laws had made it clear that in cases where death and life imprisonment are given, all mitigating circumstances are to be observed and also all the aggravating circumstances and then it has to be decided which punishment is to be given.

If in such case, Death punishment is awarded by the court, then the judge has to state Special reasons for such punishment ( SECTION 354(3) CRPC).

CONCLUSION:

There are many provisions, factors, case laws which are to be looked into when a person is to be convicted of an offence. Punishment cannot be just given on the basis of bare language of a section of a bare act, but a deep understanding of law will make you relaise that why such provisions are there.

THANK YOU

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ABOUT AUTHOR:

Nikhil Tak ( Final year LL.B student of Campus Law Centre, University of Delhi).